Can a lawyer donate legal services, such as a will, to a charity auction or silent-auction fundraiser?

Plain-English summary

Opinion 737 revisits and overrules Opinion 319 (1975), which had prohibited lawyers from donating legal services for a charity fundraiser. Lawyers had called the attorney ethics hotline asking whether they may donate a specified legal service, such as a simple will, to a charity silent-auction fundraiser. The Committee concludes that Opinion 319 "is no longer good law" and that lawyers may donate specified legal services for a charity fundraiser, as long as they clearly describe the nature of the services and do not misrepresent their value.

The Committee explains that Opinion 319 was issued when attorney advertising was flatly prohibited and was decided under former Disciplinary Rule 2-103, which barred a lawyer from giving anything of value to a person or organization to recommend the lawyer. Opinion 319 reasoned that auctioning a lawyer's donated services put the charity in the position of "recommending" the lawyer and being paid for the introduction. The current analogs are RPC 7.2(c) (no giving anything of value to a person for recommending the lawyer's services) and RPC 7.3(d) (no compensating anyone to recommend or secure the lawyer's employment).

The Committee re-answers the key question, whether a charity "recommends" the lawyer when it auctions the donated services, in the negative. It reasons that bidders at a charity silent auction understand the services were donated without the charity vetting their quality, and would not think the charity is endorsing or recommending the lawyer. Like donations of massages, haircuts, or lawn care, a donated legal service is understood as the donor supporting the charity and marketing the donor's business. The charity does not endorse the lawyer; it merely offers the donated service among others. There is no violation of the Rules of Professional Conduct.

The Committee adds a condition. A donating lawyer should clearly specify the nature of the services, citing RPC 1.4(c) (explaining a matter so the client can make informed decisions) and RPC 7.1(a)(4) (permissible statements about the legal fee). The lawyer must describe the services and disclose relevant variables so the offer is not misunderstood or deceptive, and may not misrepresent the value of the services.

In practice

The opinion holds that, in New Jersey, a lawyer may donate specified legal services to a charity fundraising auction without violating the Rules of Professional Conduct, and it overrules the contrary result in Opinion 319. Per the opinion, the charity's auction of the donated services is not a "recommendation" of the lawyer under RPC 7.2(c) or RPC 7.3(d). The opinion conditions this on the lawyer clearly describing the nature of the donated services and disclosing relevant variables, consistent with RPC 1.4(c) and RPC 7.1(a)(4), and not misrepresenting the value of the services.

Common questions

Q: Can I donate a will or other legal service to a charity silent auction?

A: Yes. The opinion concludes a lawyer may donate specified legal services for a charity fundraiser, overruling Opinion 319, provided the services are clearly described and their value is not misrepresented.

Q: Isn't the charity 'recommending' me if it auctions my donated services?

A: The Committee concludes it is not. It reasons that bidders understand the services were donated without quality vetting and would not view the charity as endorsing or recommending the lawyer, similar to donations of non-legal services.

Q: What do I have to do to stay within the rules?

A: The opinion states the lawyer should clearly specify the nature of the services to be rendered (RPC 1.4(c)), disclose relevant variables so the offer is not misunderstood or deceptive, and not misrepresent the value of the services (RPC 7.1(a)(4)).

Q: Does Opinion 319 still apply?

A: No. The opinion states that Opinion 319 "is no longer good law" and issues this superseding opinion.

Background and rules framework

The opinion interprets RPC 7.2(c) and RPC 7.3(d) (no giving or compensating anything of value to recommend or secure the lawyer's employment), the current New Jersey analogs to former Disciplinary Rule 2-103, and conditions the result on RPC 1.4(c) (communication) and RPC 7.1(a)(4) (permitted statements about fees). These correspond to Model Rules 7.2, 7.3, 1.4, and 7.1. The opinion is a superseding opinion: it expressly overrules Opinion 319 (September 25, 1975), which had been decided under the pre-1984 Disciplinary Rules.

Citations and references

Rules of Professional Conduct:

• MR 7.2 / NJ RPC 7.2(c) (no giving anything of value for recommending the lawyer's services)
• MR 7.3 / NJ RPC 7.3(d) (no compensating anyone to recommend or secure employment)
• MR 1.4 / NJ RPC 1.4(c) (explaining a matter to permit informed decisions)
• MR 7.1 / NJ RPC 7.1(a)(4) (permissible statements regarding the legal fee)

Former rules:

• Former Disciplinary Rule 2-103(A), (B), (C) (pre-1984 Code of Professional Responsibility)

Other opinions cited:

• ACPE Opinion 319 (Sept. 25, 1975): superseded and overruled by this opinion

See also

• NJ ACPE Op. 741: Paying for Leads vs. Referrals
• ABA Formal Op. 465: Daily-Deal Marketing

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2020/acp737-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. Page-break artifacts have been removed; the linked official source controls.

Appointed by the Supreme Court of New Jersey

ACPE OPINION 737

Donating Legal Services to Charity Fundraisers; Superseding Opinion 319

After receiving several calls on the attorney ethics research assistance hotline from lawyers asking whether they may donate specified legal services, such as a simple will, to a charity silent auction fundraiser, the Advisory Committee on Professional Ethics decided to revisit prior Opinion 319 (September 25, 1975). Opinion 319 prohibits lawyers from donating legal services for a charity fundraiser and was issued at a point in time when attorney advertising was flatly prohibited. The Committee hereby finds that Opinion 319 is no longer good law and issues this superseding Opinion. Lawyers may, consistent with the Rules of Professional Conduct, donate specified legal services for a charity fundraiser, provided that lawyers clearly describe the nature of the services to be rendered and do not misrepresent the value of such services.

Opinion 319 states (in its entirety):

Is it proper for an attorney to donate professional time, or a particular legal service, to a charitable organization to enable that charity to auction such services in a fundraising?

Under DR 2-103, we believe that this arrangement puts the charity in the position of recommending that attorney and then being remunerated by him for the introduction. Where the donated time is nonlegal, e.g., sidewalk sketch or photo at a street fair, there is no ethical concern.

Accordingly, this Committee is of the opinion that it is improper for an attorney to donate legal services to a charity for fundraising by the auction of such services.

Opinion 319 construed the Disciplinary Rules, which were supplanted by the Model Rules of Professional Conduct in 1984. Former Disciplinary Rule 2-103 provided:

(A) A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.

(B) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client except that he may pay the usual and reasonable fees or dues charged by any of the organizations listed in DR 2-103(D).

(C) A lawyer shall not request a person or organization to recommend or promote the use of his services or those of his partner or associate, or any other lawyer affiliated with him or his firm, as a private practitioner . . . .

The current equivalent of Disciplinary Rule 2-103 is set forth in Rules of Professional Conduct 7.2(c) and 7.3(d). Rule of Professional Conduct 7.2(c) provides that "[a] lawyer shall not give anything of value to a person for recommending the lawyer's services . . . ." Rule of Professional Conduct 7.3(d) provides that "[a] lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in the lawyer's employment by the client . . . ."

The Committee, in Opinion 319, decided that when a lawyer offers to donate specified legal services, such as a simple will, to a charity for a silent auction or similar fundraising event, the charity is considered to be "recommending" the lawyer to the silent auction bidder. Further, the Opinion states that the lawyer is paying the charity for introducing the client to the lawyer.

A lawyer is offering something of value – specified legal services – as a donation to the charity for the fundraising auction. The question that the Committee revisits is whether a charity is considered to be "recommending" the lawyer when the charity presents the lawyer's donation of specified legal services as an item to be auctioned at a fundraising event.

The Committee recognizes that most bidders at charity silent auctions understand that the specified services have been donated to the charity without any stringent vetting by the charity as to the quality of the services that are offered. Bidders at charity silent auctions would not necessarily think that the charity is "endorsing" or "recommending" the lawyer who has donated legal services. Rather, like other businesses donating services, such as massages, haircuts, or lawn care, the bidders would understand that the donor seeks to support the charity's mission and to market the donor's business in an effort to find new customers or clients. The charity does not endorse the lawyer; it merely offers these donated services, along with others, at their fundraising event. There is no violation of the Rules of Professional Conduct.

The Committee notes, however, that lawyers who donate legal services to charities for fundraising events should clearly specify the nature of the services to be rendered. RPC 1.4(c) (lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation); RPC 7.1(a)(4) (permissible statements regarding the legal fee). Many legal services can be offered for a reasonable fixed fee. The lawyer would need to specifically describe the services, and disclose all relevant variables and considerations, so that the offer of services would not be misunderstood or be deceptive. Further, lawyers may not misrepresent the value of such services.